NOTE: Where it is feasible, a syllabus (headnote) will be released,
as is being done in connection with this case, at the time the opinion
is issued. The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the convenience
of the reader. See United States v. Detroit Lumber Co.,200
U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GUTIERREZ de MARTINEZ et al.
v. LAMAGNO et al.

certiorari to the united states
court of appeals for the fourth circuit

No. 94-167.
Argued March 22, 1995 -- Decided
June 14, 1995

Invoking the federal court's jurisdiction based on diversity of citizenship,
petitioners alleged in their complaint that they had suffered physical
injuries and property damage as a result of an accident in Colombia caused
by the negligence of respondent Lamagno, a federal employee. The United
States Attorney, acting pursuant to the statute commonly known as the Westfall
Act, 28 U.S.C.
§ 2679(d)(1), certified on behalf of the Attorney General that
Lamagno was acting within the scope of his employment at the time of the
episode. Ordinarily, upon such certification, the employee is dismissed
from the action, the United States is substituted as defendant, and the
case proceeds under the Federal Tort Claims Act (FTCA). But in this case,
substitution would cause the action's demise: petitioners' claims arose
abroad, and thus fell within an exception to the FTCA's waiver of the United
States' sovereign immunity. And the United States' immunity would afford
petitioners no legal ground to bring Lamagno back into the action. See
United States v. Smith, 499
U.S. 160. Endeavoring to redeem their lawsuit, petitioners sought court
review of the Attorney General's scope of employment certification, for
if Lamagno was acting outside the scope of his employment, the action could
proceed against him. However, the District Court held the certification
unreviewable, substituted the United States for Lamagno, and dismissed
the suit. The Fourth Circuit affirmed.

Held: The judgment is
reversed, and the case is remanded.

23 F. 3d 402,
reversed and remanded.

Justice Ginsburg delivered
the opinion of the Court with respect to Parts I, II, and III, concluding
that the Attorney General's scope of employment certification is reviewable
in court. Pp. 5-17.

(a) As shown by the division in the lower courts and in this case,
the Westfall Act is open to divergent interpretation on the question at
issue. Two considerations weigh heavily in the Court's analysis. First,
the Attorney General herself urges review, mindful that in cases of the
kind petitioners present, the incentive of her delegate to certify is marked.
Second, when a Government official's determination of a fact or circumstance--for
example, "scope of employment"--is dispositive of a court controversy,
federal judges traditionally proceed from the strong presumption that Congress
intends judicial review. Review will not be cut off absent persuasive reason
to believe that Congress so intended. No such reason is discernible here.
Pp. 5-6.

(b) Congress, when it composed the Westfall Act, legislated against
a backdrop of judicial review: courts routinely reviewed the local U. S.
Attorney's scope of employment certification under the Act's statutory
predecessor. The plain purpose of the Westfall Act was to override Westfall
v. Erwin,484
U.S. 292, which had added a "discretionary function" requirement, discrete
from the scope of employment test, as a criterion for a federal officer's
personal immunity. Although Congress thus wanted the employee's personal
immunity to turn solely on the critical scope of employment inquiry, nothing
tied to the Act's purpose shows an intent to commit that inquiry to the
unreviewable judgment of the Attorney General or her delegate. Pp. 6-8.

(c) Construction of the Westfall Act as Lamagno urges--to deny
to federal courts authority to review the Attorney General's scope of employment
certification--would oblige this Court to attribute to Congress two highly
anomalous commands. First, the Court would have to accept that, whenever
the case falls within an exception to the FTCA, Congress has authorized
the Attorney General to sit as an unreviewable judge in her own cause--able
to block petitioners' way to a tort action in court, at no cost to the
federal treasury, while avoiding litigation in which the United States
has no incentive to engage, and incidentally enhancing the morale--or at
least sparing the purse--of federal employees. This conspicuously self
serving interpretation runs counter to the fundamental principle that no
one should be a judge in his own cause, and has been disavowed by the United
States. Pp. 8-11.

(d) Second, and at least equally perplexing, Lamagno's proposed
reading would cast Article III judges in the role of petty functionaries,
persons required to rubber stamp the decision of a scarcely disinterested
executive officer, but stripped of capacity to evaluate independently whether
that decision is correct. This strange course becomes all the more surreal
when one adds to the scene the absence of any obligation on the part of
the Attorney General's delegate to conduct proceedings, to give the plaintiff
an opportunity to speak to the scope of employment question, to give notice
that she is considering the question, or to give any explanation for her
action. This Court resists ascribing to Congress an intention to place
courts in the untenable position of having automatically to enter judgments
pursuant to decisions they have no authority to evaluate. Pp. 11-12.

(e) The Westfall Act's language is far from clear. Section 2679(d)(2)
provides for removal of the case from state to federal court and for substitution
of the United States as defendant upon the Attorney General's certification.
Section 2679(d)(2) states explicitly that "certification of the Attorney
General shall conclusively establish scope of office or employment for
purposes of removal." (Emphasis added.) Notably, §2679(d)(2) contains
no such statement with regard to substitution. The §2679(d)(2) prescription
thus tends in favor of judicial review. Counseling against review, however,
is the commanding force of the word "shall": "Upon certification by the
Attorney General . . . , any civil action or proceeding . . . shall
be deemed an action against the United States . . . , and the United States
shall be substituted as the party defendant." §2679(d)(1) (emphasis
added). As the statutory language is reasonably susceptible to divergent
interpretations, the Court adopts the reading that accords with the presumption
favoring judicial review and the tradition of court review of scope certifications,
while avoiding the anomalies that attend foreclosure of review. Pp. 12-17.

Ginsburg, J., delivered the
opinion of the Court with respect to Parts I, II, and III, in which Stevens,
O'Connor, Kennedy, and Breyer, JJ., joined, and an opinion with respect
to Part IV, in which Stevens, Kennedy, and Breyer, JJ., joined. O'Connor,
J., filed an opinion concurring in part and concurring in the judgment.
Souter, J., filed a dissenting opinion, in which Rehnquist, C. J., and
Scalia and Thomas, JJ., joined.